Order 1

Order Details: Notice of Motion
Pdf Text: 1 Order in NM No 1980/2018
in Sum Suit No.463/2017
MHCC010065042018
IN THE COURT OF JUDGE, CITY CIVIL COURT
AT GREATER BOMBAY
NOTICE OF MOTION NO. 1980 OF 2018
IN
SUMMARY SUIT NO. 463 OF 2017
Messrs. Bharat Rice Mills ...Plaintiff
Versus
1. Messrs Marvelo India &Anr. ...Defendants
Appearance :
Ld Adv. Mr. Vijay Waghela for plaintiff.
Ld Adv. Mr. Sandesh Kate i/b. Adv. Mr. Mahendra Shingade for
defendant No.2.
Coram : DR. S. D. TAWSHIKAR
C. R. NO : 61
Heard on : 11/04/2023.
Decided on : 11/04/2023
ORDER
(Dictated and pronounced in open Court)
By way of present Notice of Motion (NM) defendant No.2
seek condonation of delay in causing appearance. The exact delay is not
mentioned by the plaintiff.
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2 Order in NM No 1980/2018
in Sum Suit No.463/2017
2. Considering short issue involved in NM and long pendency
to decide it, I find it proper to hear and decide it today, without further
delay.
3. Ld advocate for defendant No.2 seeks time for hearing on
NM. However considering long standing pendency of the NM, his
request for adjournment is rejected.
4. Ld advocate for the plaintiff seeks time to file reply. The
record reveals that NM was served on plaintiff on 14-06-2018, however
till date no reply is filed. Therefore, request for time to file reply by
advocate for plaintiff is also rejected.
5. I have gone through NM and affidavit filed in support of it.
Amongest the other some of the prominent reasons for condoning of
delay are as under-
i. The postal service with remark “unclaimed” is not a good service
and therefore
exparte order is improper.
ii. There are various litigation initiated by the defendant No.2 and
therefore he was required to approach various Courts to attend
the matter.
iii. The brother of defendant No.2 was gone missing since 29-12-
2016 and defendant No.2 had to run to the police station in
search of his brother.
iv. Delay is not intentional or deliberate.
6. It needs to be noted that though already exparte order is
passed against defendants, defendant No.2/applicant has not formally
sought setting aside ‘exparte’ order. However, same can be seen as
technical or procedural flaw. Unless exparte order is set aside, no
appearance can be recorded. Hence, so as to save further delay in
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3 Order in NM No 1980/2018
in Sum Suit No.463/2017
judicial proceedings, I do not find it to be hurdle in passing appropriate
order.
7. Defendant has also assigned other reasons of his busyness.
None of the reasons are found sufficient, however, considering the fact
that defendant No.2 had caused appeance on very next date of passing
order of
exparte, I find delay which is about eight (08) months needs to
be condoned in the interest of justice. I find no intentional or deliberate
delay on part of defendant No.2. However, the delay caused needs to be
condoned by imposing appropriate costs. Considering the delay caused,
I find cost of Rs. 2,500/- would be just and proper. Hence, the order-
ORDER
1. Notice of Motion No. 1980/2018 is allowed subject to cost of
Rs.2,500/- ( Rupees Two Thousand Five Hundred only).
2. Cost to be deposited with the DLSA, Mumbai within four weeks
from the date of this order.
3.
Exparte order passed against defendant No.2 dated 11-01-2018 is
hereby set aside.
4. Delay caused in appearance is hereby condoned.
5. VP of defendant No.2 be taken on record subject to depositing of
the costs.
6. Notice of Motion No. 1980/2018 is disposed of accordingly.
(Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai
Date-11-04-2023 Court Room No.61
Dictated on : 11-04-2023
Transcribed on : 12-04-2023
Corrected : 12-04-2023
Printed and Signed on : 12-04-2023
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in Sum Suit No.463/2017
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in Sum Suit No.463/2017
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
12-04-2023 at 04.45 p.m. Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
11-04-2023
JUDGMENT/ORDER signed by P. O. on 12-04-2023
JUDGMENT/ORDER uploaded on 12-04-2023
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in Sum Suit No.463/2017
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